Individual determined to be suffering from a mental disability placed on involuntary Civil Service Law Section 72 leave of absence

Individual determined to be suffering from a mental disability placed on involuntary Civil Service Law Section 72 leave of absence
NYC Administration for Children’s Services v S.B., OATH Index #2425/10

The Administration for Children's Services sought to place a child welfare specialist on involuntary leave pursuant to Civil Service Law Section 72 because of alleged mental disability.

Although S.B. had a satisfactory work history with the Administration, OATH Administrative Law Judge Ingrid Addison found that the evidence, including testimony of S.B.'s colleagues that they felt concerned for their safety, examples of bizarre and rambling emails respondent had sent, and the expert reports of two psychiatrists demonstrated that S.B. was mentally unfit for duty.

Section 72 leave is available to an employee who is unable to perform his or her duties because of a disability other than a disability resulting from an occupational injury or disease as defined in the Workers’ Compensation Law, while Section 71 of the Civil Service Law provides for a leave of absence when the employee is absent due to an occupational injury or disease.

The decision is posted on the Internet at:
http://archive.citylaw.org/oath/10_Cases/10-2425.pdf

Agility tests for firefighters must be validated as job related

Agility tests for firefighters must be validated as job related
Pietras v Farmingdale Fire District, USDC EDNY, 94-CV-0673

U.S. District Court Judge Denis R. Hurley ruled that an agility test for a volunteer firefighter unlawfully discriminated against Victoria Pietras because of her gender.

Pietras, a probationary volunteer firefighter with the Farmingdale Volunteer Fire Department, was required to drag to drag a 280 pound fire hose 150 feet in four minutes. Her best time was four minutes, forty-seven seconds. Rejected for full firefighter status, she sued contending that this portion of the agility test had a disparate impact on women in violation of Title VII of the Civil Rights Act of 1964.

Although Judge Hurley ruled that the Department “established that the contents of the test are job-related” he decided that “the same may not be said of the requirement that it be completed within four minutes.”

How was the four-minute hose drag requirement determined? The Department said that it gave the test to 44 members of the Department, including probationary and junior members. It found that the average time to complete the task was “about three and one half minutes.” It then added an additional half-minute for “leeway,” arriving at the four-minute requirement.

This process, said the Court, was insufficient to establish that “the four-minute time limit is anything other than arbitrary.”

Critical to Judge Hurley’s analysis was his finding that “the purpose of the test was to distinguish competent firefighter candidates from those without the necessary physical abilities to do the job.”

Judge Hurley concluded that to set a standard there had to be some type of job analysis but there was nothing in the record to indicate that such a study had been made, either before administering the test or “after the fact.” This, said the Court, indicated that the standard set by the Department had not been “validated.”

Judge Hurley directed the Department to reinstate Pietras, noting that it could administer another agility test to her as a pre-requisite to her becoming a full member but that any such test had to comply with the relevant federal and state civil rights laws.
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When appealing individual’s employment status all parties that may be affected must be named and served

When appealing individual’s employment status all parties that may be affected must be named and served
Five Residents v Liberty CSD, Decisions of the Commissioner of Education, Decision #13861

If a party wishes to have the Commissioner of Education review an issue, it is critical that all parties who might be affected by the Commissioner’s decision be named in the petition. This point was made clear in an appeal filed by five residents of the Liberty Central School District.

A five-year employment contract between Superintendent and the District was to terminate June 30. Prior to June 30, the parties signed a new contract providing for the Superintendents employment for an additional two years.

The resident-appellants challenged the extension of the contract, claiming it violated the “minimum/maximum” term provisions set out in Section 1711(3) of the Education Law.*

The Commissioner dismissed the petition without considering its merits. He commented that the residents had failed to name a necessary party -- the District’s Board of Education. The Commissioner said that “since the board’s agreement with the superintendent would be adversely affected by a decision in favor of the [residents], the board is a necessary party to this appeal.”**

* Section 1711(3) provides, in pertinent part: “a board of education may enter into a contract with such superintendent for a period of not less than three and not more than five years,”

** In addition, the Commissioner said that he would have had dismiss the appeal event if the board had been named in the petition as the issue had become moot as a result of the Superintendent’s having resigned and thus the contract that the residents sought to have annulled was no longer in effect.
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New York City Fire Department Emergency Medical Technician terminated after testing positive for cocaine

New York City Fire Department Emergency Medical Technician terminated after testing positive for cocaine
NYC Fire Department v Rivera, OATH Index #3416/09

OATH Administrative Law Judge Julio Rodriguez recommended termination of Carlos Rivera, a New York City Fire Department EMT.

Rivera tested positive for cocaine in a random workplace drug test -- registering more than 250 times the official cut-off.

The Department had previously sent him for voluntary rehabilitation three times and afterwards reinstated him to his position.

In his defense Rivera asserted that his drug addiction was a disability requiring accommodation.

ALJ Rodriguez disagreed, finding that Rivera did not establish that he was disabled within the relevant definition of disability set out in the federal Americans with Disabilities Act or the New York State Human Rights Law.

The decision is posted on the Internet at:
http://archive.citylaw.org/oath/09_Cases/09-3416.pdf

Claiming breaks in service for childcare may be excused for the purposes of member service in the NYS Employees’ Retirement System

Claiming breaks in service for childcare may be excused for the purposes of member service in the NYS Employees’ Retirement System
Soronen v Comptroller, 244 A.D.2d 842

William Soronen, Jr., was a temporary aide to a New York State Senator during the 1974 and 1975 legislative sessions. He worked on a part-time basis. In July 1975 Soronen accepted a position with a private law firm. In 1978 he was appointed as a confidential law clerk to a State Supreme Court justice and joined the New York State Employees’ Retirement System [ERS].

Soronen subsequently applied for retroactive membership in ERS based on his service with the State legislature in 1974 and 1975 pursuant to Section 803 of the Retirement and Social Security Law.

ERS rejected his application on the grounds that he had a “break in service.” Soronen appealed, contending that he had not reapplied for employment with the State legislature, although his employer would have approved such part-time employment, because he wanted to care for his son. He attributed his three-plus year break in public service to childcare, claiming that Section 803(b)(2) allowed certain breaks in service “attributed to the birth of a child... or care for such child.”

The Appellate Division affirmed ERS’ determination, noting that Soronen’s break in public service was due to the end of the 1975 legislative session and his termination from his temporary employment, not childcare. The Court also commented that Soronen had not demonstrated that “a public employment position was definitely available to him during both the 1976 and 1977 legislative sessions and that he turned [them] down because of child care requirements.”